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The Ontario Court of Appeal dismissed an estate appeal challenging donative intent, witness corroboration, executor fees, and substantial indemnity costs.
Although the applicants were substantially successful and an unaccepted settlement created a presumption in favour of increased costs, the court exercised its broad discretion to refuse an award of costs because the litigation was driven by family dynamics and applicants' conduct (isolating the respondent, clandestine management), the parties' wealth meant a costs order would have disproportionate personal impact, the applicants received a non-monetary windfall (family cottage), the respondent had some success on objection, and awarding costs would impede family reconciliation; accordingly ea…
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The Court of Appeal held that the appropriate method is to first apply the percentage-based tariff guidelines and then cross-check and adjust that result by reference to the established five-factor test; time records cannot be given overriding significance nor be used to punish a trustee for lack of detailed timekeeping; appellate review of such assessments is restrained and intervenes only for error in principle, grossly wrong results, or unreasonable findings of fact; the Divisional Court majority was correct to apply the tariff guidelines and fix compensation at $211,968.33.
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